Labor Relations Update

Category Archives: Handbook

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NLRB Overturns Election Win For Employer That Failed To Timely Serve Voter List (Even Though Union Received List In Timely Fashion)

The NLRB is down to three members, the bare minimum required to conduct business, and so cases are being issued somewhat sporadically. The so-called ambush election rules have received a lot attention over the last few years.  We recently discussed here a case where the NLRB found that a union had not timely filed a … Continue Reading

NLRB Refuses to Approve Withdrawal of Charges Despite Settlement of Class Action Case

We know that, among many other common employer policies, the NLRB considers many mandatory arbitration agreements to be unlawful, particularly where they prohibit class or collective actions.  See Murphy Oil USA, Inc., 361 NLRB No. 72 (2014).  Unlike a more run of the mill handbook violation where the government seeks removal or modification of the policy, an … Continue Reading

NLRB Reverses Course, Gives Employees Certain Rights to Use Employer’s Email

In a decision that reverses existing case law on employee use of  employer email, the National Labor Relations Board (with two members filing separate dissents) has decided that under certain circumstances employees do have the right to use and employer’s email to engage in protected communications under the National Labor Relations Act. Purple Communications, Inc., … Continue Reading

NLRB Says On-Line Planning For Insubordination Is Not Protected Concerted Activity

 In Richmond District Neighborhood Center, Case 20-CA-091748 (Oct. 28, 2014), the Board upheld an Administrative Law Judge’s ruling that a conversation between two employees, who were involved with student programming at the neighborhood center, was not protected under the NLRA.  During the course of their Facebook exchange, which included obscenity-laced statements regarding how they would … Continue Reading

Reading the NLRB Signs at the Triple Play Sports Bar

In Three D, LLC d/b/a Triple Play Sports Bar and Grille, 361 NLRB No. 31. (August 22, 2014), the National Labor Relations Board ruled that an employee “liking” a status on Facebook is engaging in protected concerted activities under the NLRA.   Employees were unlawfully terminated for ranting about the employer’s tax-withholding error, which resulted in … Continue Reading

NLRB Work Rule Decisions Continue to be a Mixed Bag

As the NLRB continues to wade through the pool of issues arising from social media policies and other workplace rules, an Administrative Law Judge’s recent decision in Cellco Partnership d/b/a Verizon Wireless (July 25, 2014) illustrates the growing number of problems employers face in developing corporate policies and the variability of NLRB decisions. In this … Continue Reading

NLRB Overturns Decert Election Based On Employer’s “Promises” Of 401(k)

The last few months have seen very little in the way of NLRB decisions.  The recent Supreme Court decision  where the recess appointments to the NLRB were invalidated, likely will further slow down the process of issuing decisions. Still, the NLRB has had a full complement of members for almost a year, and the agency manages to … Continue Reading

Old Fashioned Protected Concerted Activity Stirred Up With A Twist

A recent NLRB ALJ decision illustrates the old and the new under the National Labor Relations Act (“Act”).  The case is Gates & Sons Barbeque of Missouri, Inc. and Workers’ Organizing Committee, Kansas City, No. 14-CA-110229 (June 17, 2014). In this case, the employer operated a successful chain of barbeque restaurants.  One of the benefits … Continue Reading

NLRB Administrative Law Judge Rulings on Work Rules and Social Media Policies Continue to Perplex

NLRB Work Rules and Social Media Policies Continue to Perplex The NLRB may be getting #SocialMedia, but confusion concerning employer work rules and social media policies became obvious yet again in Professional Electrical Contractors of Connecticut (June 4, 2014).  In this decision, ALJ Raymond Green wrote that “a legitimate conflict of principles . . . will require … Continue Reading

NLRB Gets #SocialMedia: Board and ALJ Rulings Recap

‘April rulings bring May muddling’ might be a better way to tweet recent social media decisions at the National Labor Relations Board (NLRB) given the Board’s ruling in Durham School Services (April 25, 2014) and an Administrative Law Judge’s (ALJ) opinion in Kroger Co. of Michigan (April 21, 2014).  Together, these two decisions show that the … Continue Reading

Employer Email Policies on Chopping Block as General Counsel Seeks to Overrule Register Guard and Board Calls for Amicus Briefs

In a development of importance to both union and non-union employers, the NLRB General Counsel has asked the NLRB to overrule its 2007 decision in Register Guard, 351 NLRB 1110 (2007).  In Register Guard, the Board had held that employers could bar employee use of the employer’s email for non-business purposes, including union or other … Continue Reading

NLRB Rules That Union’s Offer To Waive Dues For Six Months To Make Up For Tiny Wage Increase Did Not Interfere With Decertification Election

As of July 31, the NLRB has a full complement of Board Members, for the first time in about ten years.  The fact the deal on appointments has been progressing for a few weeks did not prohibit the three member Board of questionable constitutional validity from continuing to render decisions. The NLRB recently ruled that … Continue Reading

NLRB Advice Memo Pulls Together Principles Applied in Evaluating Employer Work Rules and Social Media Policies

A 2012 Advice Memo from the National Labor Relations Board’s (“NLRB”) General Counsel was recently publicly released in response to a Freedom of Information Act request. While the Advice Memo applies the long-standing framework used by the NLRB to evaluate the lawfulness of workplace rules more generally, it is noteworthy because it addresses a number of hot … Continue Reading

Employer Merely Granted Employee’s Wish To Be Terminated, NLRB Div. Of Advice Rules

Social media permeates society.  It was inevitable that the increased use of smart phones and various communications platforms such as Facebook and Twitter would clash with the workplace.  We have noted several instances where the NLRB has alleged that employer action in response to social media posts is unlawful, as well as its seemingly endless review … Continue Reading

NLRB Pulls Back A Little More On Policy Frenzy, Finds Code Of Conduct Does Not Violate The Act

As we have seen repeatedly in the last year, the NLRB has taken it upon itself to police employer policies often finding a phrase or two to be a violation of the Act.  In recent months we have seen the NLRB seemingly pullback on this trend, taking a much closer look at the context of … Continue Reading

NLRB, Union Violated Act When Steward Invoked Company Handbook To Stop Member Complaints

In the last couple of years, we have seen close scrutiny of employer handbooks by the NLRB.  If the agency deems a policy, or a portion of a policy, to be something employees might reasonably construe to inhibit protected activities, it is found to be unlawful.  These types of cases are vexing. if only because … Continue Reading

NLRB Developments Post-Election – What The Future May Hold In Labor Relations

Now that the election is over, one of the main questions being asked is, what next?  We recently held a Webinar entitled “The Latest at the NLRB and Post-Election Developments” to address this question.  It seems clear that with Congress still divided that there likely will not be much in the way of legislative change.  The pressing issues … Continue Reading

NLRB Division, Some “At-Will” Clauses Ok

The Board’s excruciatingly close scrutiny of employer policies continues as the agency looks for opportunities to expand its juridiction by rooting out all evil lurking in handbooks and other written employment policies.  The NLRB has taken the position that certain “at-will” language in handbooks, language that in various forms exists in virtually every private employer’s handbook in … Continue Reading

Update: NLRB Upholds Termination For Facebook Posting, But Nails Employer For Unrelated Handbook Policy

The NLRB has received a lot of attention for its actions the last couple years.  One of the storms was caused by the agency’s attention to employer actions based on employee Facebook postings.  More to the point, employers were not too thrilled with some things being posted by employees on the internet for the multitudes to see, … Continue Reading

NLRB: Employer’s Harassment Investigation Lawful, But Not Resulting Discipline

As the end of its fiscal year approaches (September 30), the NLRB pushes more decisions out than it has in the last several weeks.  Not a whole lot are of note, honestly.  There seems to be an uptick of default judgments being issued,-findings of violations of the NLRA without a formal hearing,–but it is difficult … Continue Reading

Post-Labor Day Evaluation Shows….Very Little Activity At NLRB

What a difference a year makes.  Last year, we saw a blizzard of change coming from the NLRB.  One could forecast what was going to happen due to the proactive nature of the agency’s public expression of its intentions, as well as its solicitation of viewpoints.  It seemed every month brought some new, big change … Continue Reading

Dues Checkoff Clear In Revocation Requirements, Says NLRB (By Default)

The looming presidential election seems to have slowed the NLRB down, despite the fact the Board is currently at a full complement of five members.  As of July 24, it will be down to four, as Member Flynn’s resignation will become effective at that time. The Board cases being decided these days largely involve mundane matters, … Continue Reading

Independence Day Incrementalism: NLRB (Again) Expands On Precedent By Ruling Employer Off-Duty Access Rule Unlawful

Last year the NLRB’s order of the day was sweeping change.  That brought us the employee rights poster, the ambush election rules, and micro unions.  The Board today is not acting in such a bold manner, and instead is seeking gradual change through a policy of incrementalism.  We saw recently how the current Board expanded … Continue Reading

Employer Meetings, Election Site The Next Targets Of NLRB?

It’s been a quiet few weeks for the NLRB.  Since January 1, the NLRB has issued only a small number of decisions, none of which appear to be noteworthy.  There are, of course, many developments that are in process.  For example, we still do not know the full effect of the NLRB’s decision in Specialty … Continue Reading
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